Taking a loan and not returning it as promised constitutes cheating and breach of trust.

Heard learned counsel for the parties.

2. The petitioners by invoking the inherent jurisdiction of this Court under Section 482 Cr.P.C. seek quashing of the cognizance order dated 10.02.2014, passed by S.D.J.M., Dehri, Rohtas in Dehri P.S. Case No. 683 of 2010 thereby taking cognizance of the offence under Sections 406 and 420/34 of the Indian Penal Code.

3. A short fact giving rise to the case is that the accused Dayanidhi Singh, petitioner no.1 had good relationship with Smt. Muskan Pandey, Director of U.S. Constructions Private Limited, so he took loan of Rs.100,00,000/- and promised to return it back after getting payment from his contract work as he had made investment in the projects. The amount was given by cheques, some amount in cash and some materials were also provided by the Director, U.S. Constructions Private Limited to the petitioners. On persuasion made by the informant to pay back the loan amount, Dayanidhi Singh issued several cheques, in total of Rs.80,00,000/- to U.S. Constructions Private Limited but the Bank Manager disclosed that no such amount in the account of the accused is available, so the informant disclosed this fact to the Director, who talked with the accused who again promised to inform them after making arrangement of the money. On one pretext or the other he was taking time, ultimately he declared that he is unable to return back the money.

4. Learned counsel for the petitioners submits that in case of getting a friendly loan and non-payment of the loan amount does not constitute any offence of either cheating or breach of trust. Learned counsel for the petitioners has placed reliance on two decisions, in the case of Binod Kumar vs. State of Bihar, reported in 2015 (1) PLJR 120(SC) and other in the case of Iceberg Industries Limited vs. State of Bihar, reported in 2010 (2) PLJR 1043. Learned counsel for the petitioners further submits, in alternative argument, that as far as petitioner no.2 is concerned, even taking the entire allegation in its entirety, no offence is made out against her. She has only been implicated in this case being the wife of Dayanidhi Singh, petitioner no.1.

5. Contrary to that the learned counsel appearing on behalf of opposite party no.2 submits that the decisions relied upon by the learned counsel for the petitioners is not applicable in the present case. Both the cases relate to contractual work. In case of failure to make payment in contractual work, the Court held that no ingredient of cheating and breach of trust is made out however, concedes that there is no allegation in the FIR against petitioner no.2.

6. Having considered rival submissions and on perusal of the records, the Court finds that in case of taking friendly loan and not returning it back later on, as promised, the allegations do disclose prima facie case of cheating and breach of trust. Sections 415 as well as 420 of the Indian Penal Code read as follows:

“415. Cheating.–Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

420. Cheating and dishonestly inducing delivery of property.–Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

7. Section 420 of the Indian Penal Code is aggravated form of cheating. One of the essential